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Compensation depends on the severity of the injury

As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Manhattan Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

On remand, a successor judge of compensation claims found that the woman’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal injuries were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of the woman’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The Staten Island employer of a claimant who suffers an industrial injury must furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require. Medical care is properly awarded when the need for such care arises from the combined effect of industrial and nonindustrial conditions. As indicated, the employer is responsible for treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. The Appellate Court thus approves the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

But the order under review also made the Paint Company responsible for half of the expense of treating the woman’s lower back or lumbar spine injury. While competent, substantial evidence supports the finding that she did not sustain a lumbar spinal injury in the first car accident the record lacks competent, substantial evidence supporting the decision to allocate responsibility for treatment of that injury is fifty-fifty. Such an allocation is not justified simply because the need for treatment was causally related both to the second and to the third accidents. None of the doctors whose opinions the judge of compensation claims cites in support of a fifty-fifty split stated that the second and third accidents were equally responsible for the condition of the woman’s lumbar spine.

The woman also contends that the judge of compensation claims erred in denying her claims for treatment with a neuropsychologist and with a separate, pain management specialist. The order provides that the authorization of a pain management physician is deferred until the claimant resumes treatment with authorized neurosurgeon, and the suggested treatment is deemed to be reasonable and medically necessary. It further provides that the authorization for care and treatment of the claimant’s neuropsychological condition is deferred until the claimant resumes treatment with the authorized psychiatrist and suggested neuropsychological treatment, is deemed to be reasonable and medically necessary.
A judge of compensation claims has no authority to delegate the decision of claims pending before him to medical providers, to delay decision indefinitely, or, in a final order, to defer to opinions not yet offered.

The judge of compensation claims found that the woman was entitled to temporary partial disability benefits from the April 30, 1996 accident until she reached statutory maximum medical improvement on May 1, 1998, and to permanent total disability benefits thereafter. He then ruled that she was entitled to only two-thirds of the normal indemnity benefits, holding that entitlement to a third of the benefits otherwise due was carved out by the non-compensable accident. This analysis was erroneous.

If a subsequent non-compensable accident superimposes an injury on a compensable condition, the disability resulting solely from the subsequent accident is not compensable. As to temporary indemnity benefits, the question that should have been addressed on remand-and must now be addressed on a second remand-is whether the woman’s disability attributable to the industrial accidents would have rendered her (partially or totally) unemployable, without regard to the effects of the third accident.

An employer is not entitled to receive a windfall when some misfortune unrelated to work befalls an industrially injured employee and prevents his working, if a prior industrial accident would otherwise have entitled the employee to workers’ compensation benefits.
Similarly, as to permanent indemnity benefits, the judge of compensation claims must decide on remand whether the woman’s disability attributable to the industrial accidents would have rendered her totally and permanently disabled even if the third accident had never occurred. An evidentiary issue is presented as to what portion of the disability is caused by the compensable accident, even where the non-compensable condition is independently a sufficient producing cause of claimant’s total disability. The question is whether she was or would have become totally disabled in the absence of the non-work-related accident.

Accordingly, all awards of indemnity benefits and any award of medical benefits that pertain specifically to the lower back or lumbar spine are reversed, and the case is remanded for further proceedings on those claims. The order is otherwise affirmed.

Trying to get away from the responsibility for the spine related injury that we caused someone is far worst that the actual pain and harm that they are already experiencing. A lawsuit is the only course that they can do to be able to claim from the person at fault. If you have a family member who is in this kind of situation, bring them to the office of Stephen Bilkis and Associates to consult with the NYC Spine Injury Lawyers or the NY Spinal Injury Attorneys. You can also seek the representation of the New York Personal Injury Lawyer.

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